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New Jersey Legal Ethics

1.9 Rule 1.9 Conflict of Interest: Former Client

1.9:100 Comparative Analysis of New Jersey Rule

• Primary New Jersey References: NJ Rule 1.9
• Background References: ABA Model Rule 1.9, Other Jurisdictions
• Commentary:
• NJ Commentary:

1.9:101 Model Rule Comparison

New Jersey’s RPC 1.9(a) differs from the ABA Model Rule 1.9(a) in that RPC 1.9(a) provides that the client’s consent must be after a full disclosure of the circumstances and consultation with the former client.

The New Jersey Supreme Court also added a new paragraph (b) that provides that the provisions of RPC 1.7(c), i.e., the appearance of impropriety standard, are applicable as well to cases covered by RPC 1.9.

The ABA’s 1989 restructuring of Model Rules 1.9 conforms with the New Jersey Court’s approach to this issue. Compare the 1989 versions of Model Rules 1.9 with the 1983 versions. The ABA in effect adopted the New Jersey approach by transplanting a streamlined version of the 1983 formulation of Model Rule 1.10(b) into Model Rule 1.9. New Jersey’s RPCs, in contrast, retain the 1983 structure. See RPC 1.9 and 1.10.

1.9:102 Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

1.9:200 Representation Adverse to Interest of Former Client--In General

• Primary New Jersey References: NJ Rule 1.9(a)
• Background References: ABA Model Rule 1.9(a), Other Jurisdictions
• Commentary: ABA/BNA § 51:201, ALI-LGL § 213, Wolfram § 7.4
• NJ Commentary:

There are three elements that must be present in order to create a conflict requiring the consent of a past client or, in the absence of consent, withdrawal from a representation: (1) a past client whom the lawyer “represented” in a matter; (2) a present client whose interests are materially adverse to those of the past client; and (3) a current matter that is the same as or substantially related to the matter in which the lawyer represented the past client.

In addition, RPC 1.9(b) states that “[t]he provisions of RPC 1.7(c) are applicable as well to situations covered by this rule.” Because RPC 1.9(b) incorporates RPC 1.7(c), both the principle that consent is immaterial in some circumstances and the “appearance of impropriety” doctrine are a part of the analysis of conflicts involving past clients.

In other words, under RPC 1.9, a lawyer may undertake a representation adverse to a former client if the matter is neither the same as nor substantially related to any matter handled by the lawyer for the former client. Note, however, that even if a matter is found not to be substantially related to the attorney’s prior work on behalf of a presently adverse party, the current representation may still be precluded by the “appearance of impropriety” doctrine. See N.J. Advisory Comm. on Professional Ethics Op. 654 (Oct. 17, 1991). See Sections 21:1-1 and 21:5, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.9:210 "Substantial Relationship" Test

Whether a current matter is substantially related to a prior representation depends largely on the facts and circumstances of the particular case. For example, in G.F. Industries v. American Brands, 245 N.J. Super. 8 (App. Div. 1990) the court found that a breach of warranty claim arising out of a corporate acquisition was substantially related to a firm’s long-term service as the acquired company’s general counsel. See Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 214 (1988) and N.J. Advisory Comm. on Professional Ethics Op. 525 (Apr. 5, 1984). See Section 21:4, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).